Rape and the shadow of a doubt

Changes in the law to gain more convictions in rape cases are long overdue. But isn't there a danger these changes will threaten defendants' basic civil liberties?
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The Independent Online

New Labour has undertaken a major review of sexual offences legislation. There is no doubt members of the review group have been influenced by some radical feminist ideas about rape, and will recommend a range of measures designed to make it easier to gain convictions in rape cases. One of the most influential ideas in the feminist discussion of rape is that rape and sex are more alike than different. Such ideas are no longer confined to radical fringes.

New Labour has undertaken a major review of sexual offences legislation. There is no doubt members of the review group have been influenced by some radical feminist ideas about rape, and will recommend a range of measures designed to make it easier to gain convictions in rape cases. One of the most influential ideas in the feminist discussion of rape is that rape and sex are more alike than different. Such ideas are no longer confined to radical fringes.

More mainstream writers, whose ideas seem to have influenced the review group, also argue that the law ought to criminalise new sorts of male behaviour. Feminists such as Professor Sue Lees of the University of North London argue that the law should promote "communicative" sex - and therefore that it should penalise the non-communicative. She argues that "calling rape violence fails to address the coercive nature of some male sexual behaviour". The radical argument that rape and sex are similar has become increasingly popular among feminists and appears to be finding increasing favour in official political and legal circles. For instance, the radical British feminists Lorraine Kelly and Jill Radford claim that the law's distinction between rape and sex is problematic since it "suggests that clear distinctions can be drawn between violence and non-violence and thereby between abusive and 'normal' men".

A range of once-radical feminist ideas - the suspicion of heterosex; the demand that women should always be believed and that they never lie about rape; that the law should be more interventionist in policing men's behaviour - are increasingly influential within the New Labour administration. These ideas have been seized upon by policy-makers, and politicians, and have created a climate increasingly hostile to civil liberties and to the most basic ideas of human responsibility.

Demands to increase the conviction rate in rape cases (in other words to lock more men up on less evidence) through a more inquisitorial approach to rape trials are becoming commonplace. New precedents are being set, which call into question the central idea of equality before the law for men and women.

One example of the type of reform likely to emerge from the ongoing Home Office review is that the Morgan principle - the defence to rape of an "honest though mistaken" belief in consent - ought to go. Feminists and critical lawyers have argued that Morgan makes it easy for men to be acquitted when accused of rape. According to one critic, "all the man has to say is 'I thought she wanted it' and the law may be lenient". For many the Morgan principle privileges the standpoint of men over that of women. Concern has been expressed that what happens in the woman's mind - that she did not consent to sex - is disregarded by the Morgan mens rea [criminal intent] requirement. Even if the jury believes that a woman did not consent to sex, if it also believes that the man did not intend to rape her, it must acquit.

The facts of the case, resolved on appeal in 1976, were these: Morgan, an RAF pilot, and three friends had been out looking for women. They were unsuccessful, and Morgan invited his friends to come home to have sex with his wife, telling them that although Mrs Morgan would appear to resist, in fact she liked kinky sex and enjoyed the struggle. Mrs Morgan offered considerable resistance to the men who in turn used considerable force. The friends were convicted of rape, Morgan with aiding and abetting (since he could not at that time be convicted of raping his wife); the jury considered their story "a pack of lies" and convicted all four.

The men appealed against the direction of the trial judge that "their belief in her consent must be reasonable". The men argued that they had held an honest belief that Mrs Morgan had consented. The court of appeal dismissed their case, but gave leave for further appeal to the House of Lords on the question "whether in rape a defendant can properly be convicted notwithstanding that he, in fact, believed the woman consented, if such belief was not based on reasonable grounds". The Lords agreed that the appeal should fall, but also held that an honest, though mistaken belief in consent - however unlikely a reasonable man would be to hold such a belief - was a defence to rape.

Why, then, should any feminist want to stand up for a bunch of stuffy judges and for Morgan? Because under the guise of concern for the victims of rape, civil liberties are being assaulted and patronising ideas about women enshrined.

Morgan prioritises the importance of criminal responsibility, for which mens rea is shorthand. For those who are responsible for their actions - who have chosen a particular course of action - the consequence of a criminal conviction is punishment. The law holds that such blame and punishment are only appropriate if the offender was morally responsible for his behaviour.

We attribute moral responsibility to those who understand society's rules and can accept responsibility for breaking them: we reserve punishment for those who choose to break the law. The concept of criminal guilt is therefore based on a conception of the rational agency of the individual who chooses to commit crime.

Individuals may act recklessly (in rape without caring less whether the woman consented, or without considering it in the first place and which is also criminally blameworthy), or negligently (by failing to exercise reasonable care). But negligence is not generally regarded as a criminal matter since it involves no mens rea. Unlike homicide, for example, sex cannot be entered into accidentally or negligently. Sex is defined by the way it is carried out - on the basis of a conscious decision. The law recognises that unlike a homicide, where there is a dead body to account for, the sex act in itself is not harmful.

It may appear absurd to hold that a man should - in fact must - be acquitted if he did not intend to rape, even if the jury agrees the woman didn't consent. Rape (and particularly acquaintance rape) is certainly a crime that is hard to prove. But this is for good reason. The law does not privilege the interests of men above those of women. It privileges the interests of defendants above those of complainants. The defendant is protected from unjust accusation, from being deprived of his rights as a citizen, by the burden of proof rule and the protections granted to the defence. It is the prosecution that has to prove, beyond reasonable doubt, both that the complainant did not consent and that the defendant intended to rape her.

Too often in the debate on rape law reform the conception of special protections for rape victims, primarily women, are being written into the law. The danger is that the presumption of equal treatment for all citizens - men and women - is being undermined in a process that appears to be centred on the interests of women, and supported by some wrong-headed ideas which pose women as the hapless victims of male sexuality.

The writer is chair of Feminists for Justice and lecturer in women studiesat Sussex University